Opinions

‘Because of sex’ approach to protecting trans people

Many analyses of Bostock decision missed the real history

Published

6 years ago

July 23, 2020

(Washington Blade file photo by Michael Key)

“Here, I thought, looking around me, is where it all changed, because I was still too young to understand that history is not simply made up of moments of triumph strung together like pearls. I didn’t know that large changes were made up of many small ones, and of moments of suffering and backsliding and incremental, selective progress; unnecessary sacrifices and the opportunistic, privileged and lucky walking forward over the vulnerable and the dead.” —Carmen Maria Machado

The road to LGBTQ equality has been long and winding, made up, legally, of two paths — sex (gender) stereotyping and “because of . . . sex.” Until the Bostock decision last month we had a quantum mechanical, “Schrödinger’s Cat” causal conundrum — would the decision be based on “sex” as written in Title VII of the 1964 Civil Rights Act, or “sex stereotyping” as developed in the landmark 1989 Price Waterhouse v. Hopkins Supreme Court decision? Many guessed it would be the former, “because of . . . Gorsuch” and his penchant for textualism, but that didn’t stop plaintiff Aimee Stephens’ lawyer, David Cole, from arguing with the latter. Turns out it was the former, but before I trace the social history of that path, I would like to point out a delicious irony.

It’s long been understood that the modern Supreme Court rarely leads, and usually follows, public opinion. That opinion is shaped by the people, and primarily by the people’s activist corps. In the case of the gay rights movement, the people universally known through the 1960s as homosexuals became known in the 70s as gay people. Why? Because the “sex” in “homosexual” directed one’s gaze to sex acts, which is still what most Americans conjure in their minds when they hear the word “sex.” And since many were repelled by the thought of gay sex, it became evident a different, de-sexed, label was necessary.

Similarly with the trans community, which had been universally known as the transsexual community through the 1980s, and which de-sexed “transsexual” to “transgender” in the ‘90s (the first national trans rights group, founded by Riki Wilchins and Denise Norris in 1993, was called “Transexual Menace,” and the second, was the “National Transgender Advocacy Coalition,” in 1999), and then finally just the single syllable “trans” in the aughts, to match the single syllable, “gay.” Language matters. Just as Americans viewed homosexual people through the lens of their sex acts, they viewed transsexual people the same way, often reduced to sex workers and homicidal maniacs (“Dallas Buyer’s Club,” 2013 and Hitchcock’s classic, “Psycho,” 1960).

So, today, gay and trans individuals have their employment rights, and soon full protections with the Equality Act next year, because of a return to the modern source of those rights, the Civil Rights Act of 1964, and “because of . . . sex.” Not gender, but sex, and, refreshingly so, but devoid of any implications of sexual activity. Justice Gorsuch, interestingly, returned to using the archaic term “homosexual” throughout his opinion, but did not revert to “transsexual,” and treated Ms. Stephens respectfully in his comments.

How did we get here? In the weeks following the decision many of the analyses of the decision missed the real history. That history is written by the victors, but it also very much matters which victors do the writing.

The path of “because of . . .” and “but for” sex began in the 60s, as Justice Gorsuch mentioned: Not long after the law’s passage, gay and transgender employees began filing Title VII complaints, so at least some people foresaw this potential application.

Trans persons won some lower court decisions in the ‘70s, before the religious and feminist backlash began in 1979 with Janice Raymond and then the Reaganites. Trans plaintiffs lost in the late ‘70s and ‘80s because transsexualism was not recognized as a form of sex (Holloway v. Arthur Andersen, 1977, Sommers v. Budget Marketing, 1982 and Ulane v. United Airlines, 1984). And then, in 1989, came Price Waterhouse v. Hopkins, and the landscape utterly changed for trans plaintiffs.

The first, and until Bostock, only SCOTUS decision (and victory) for a trans plaintiff occurred in 1994, in a unanimous Eighth Amendment decision written by Justice Souter on behalf of the plaintiff, a black trans woman, Dee Farmer. The next federal appeals court case, and the first in a string of victories leading to Bostock, was Smith v. City of Salem in 2004, won on both sex and sex stereotyping concerns, followed by another Sixth Circuit case, Barnes v. City of Cincinnati in 2005. Philecia Barnes was also a black trans woman and she won “because of sex.” The only hiccup in this long chain of victories was Etistty v. Utah Transit Authority in the 10th Circuit in 2007. This was followed in rapid succession by the blockbusters: Schroer v. Billington, 2008; Glenn v. Brumby, 2011; and Macy v. Holder, 2012.

It was the unanimous Macy decision at the EEOC, led by Commissioner Chai Feldblum, that protected trans persons in all 50 states, and cemented the “because of sex” approach to protecting trans persons. Professor Feldblum, a major author of the 1991 Americans with Disabilities Act (ADA), had been living in Takoma Park, Md., in Montgomery County in 2007-08 when I led the campaign for Basic Rights Montgomery to pass and defend the county gender identity law. That law generated the first bathroom bill backlash in the United States, and Professor Feldblum, who had been a believer in the doctrine that trans status was a function of sex and, therefore, covered by Title VII, was further encouraged to pursue it if she ever got her chance in the federal government to make it a reality. Presciently, these were her words 20 years ago: “But a strict textualist approach might work as well (or even better) for those seeking to achieve broad protection for gay people and transgender people. Under such an approach, the intent of the enacting Congress (or state legislature) is not as important as the words the legislature chose to use.”

It had been obvious to me, as well, as I had been teaching and lobbying for years on the medical basis of transsexualism being rooted in brain sex. Research begun in 1995 had been making that very plain. But few LGBTQ attorneys, with the notable exception of Katie Eyer, believed in the possibility of progressive textualism, even though the Constitution is the product of the Enlightenment.

So after being nominated by President Obama to the Equal Employment Opportunity Commission (EEOC) and confirmed by the Senate, Professor Feldblum looked for the right case and found it in Mia Macy. She then did the same for David Baldwin in the first national gay rights victory, Baldwin v. Foxx, in 2015.

Just looking at these cases it was clear that the federal courts (and some state courts as well) were beginning to respect trans persons enough, including black trans women, beginning in the ‘90s to not only not summarily throw them out of court, but to seriously apply the “because of sex” and sex stereotyping arguments to them. All that at a time when fewer than 8% of Americans (in a 2013 poll) admitted to knowing a trans person; when gay people, far better represented in the media and known in their communities, were routinely failing in federal court. Yet there have been post-Bostock analyses by highly respected civil rights lawyers that turn this history on its head. For example, Shannon Minter, the trans attorney for the National Center for Lesbian Rights (NCLR), said: “We’ve always known that our legal arguments are strong and should be accepted, but the reason it took decades for the courts to accept these arguments was because transgender people were so foreign to the courts.”

This is not the first time. After promoting the trans legal case “because of sex” for years, I tried to get the national LGBTQ, and particularly trans, organizations to recognize our success post-Macy. They would have none of it. The lawyers at HRC, the National LGBT Task Force, and even NCTE, the National Center for Transgender Equality on whose board I sat, refused to acknowledge the breakthroughs. To get the word out I had to publish a pamphlet, with attorney Jillian Weiss and activist Riki Wilchins, which was promoted by Masen Davis and the Transgender Law Center, the only nationally oriented trans group willing to get on board. We were also supported by Tico Almeida and Freedom to Work.

Fortunately, thousands of trans persons got the message, and filed claims with the EEOC. Many won, with most settling out of court because, you know, the law matters. Yet others have lived the past eight years in fear and anxiety because our institutions’ lawyers repeatedly said that we had no protections without a decision of the Supreme Court. I countered that it would take years, or might never happen because we were winning all our cases, and without a split at the appeals court level the Court might not even take up the issue. Fortunately for us today, SCOTUS rolled us into the Circuit split on the gay rights cases (Bostock and Zarda), and we pulled the gay community along to victory. No gays left behind. We had not lost a Circuit Appeals case since 2007, the only one in the 21st century, so I, for one, was not surprised.

People who are committing themselves to activism need to understand the history so as to most effectively pursue their goals in the future. LGBTQ folks need to understand the bureaucratic resistance within their own movements, from the most well-meaning people. It is, indeed, always a long and winding road to liberty and equality.

Dana Beyer is a longtime D.C.-based advocate for transgender equality.

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How do we honor Renee Good, Alex Pretti?

Lives more than last 10 seconds captured on video

Published

3 days ago

February 20, 2026

Carew Papritz

Protesters in Haymarket, Va. on Jan. 11 protest against U.S. Immigration and Customs Enforcement after an ICE agent shot Renee Good to death in Minneapolis. (Washington Blade photo by Michael Key)

Renee Good. Alex Pretti.

During this last year, I wondered who would be the first U.S. citizen to be shot by our government. It was not a matter of if, but when. Always.

And now we know.

I thought it would be soldiers. But the masked men got there first. Because when you mix guns and protests, guns inevitably go off. The powers that be always knew it, hoped for it, and wanted it to happen.

Why? Because masked men and guns instill fear. And that’s the point. Ask yourself when’s the last time you saw masked men and guns in our cities, or anywhere for that matter. I always thought that men masked men with guns robbed banks. I was wrong.

Masked men want to rob us of our dignity as human beings. Of our assurance in the calmness and contentment of our communities. They want to rob us of our trust in our institutions, and our faith in each other. And truly they want to rob us of the happiness and joy that we all constantly yearn to find in our lives.

But our only collective ability as a nation to push back is our protests. Peaceful protests. As Renee and Alex did.

But peaceful protests? Because they are the perfect power to shame the cowardice of those that believe guns and force are the only true authority. Fortunately, our last hope and fiercest ally is our Constitution, which gives us the power — and the right — to protest.

How much more peaceful can you get when you hear Renee Good’s last words, “I’m not mad at you, Dude.” I may be mad at the system, the government, the powers of unknown people pulling the strings but not you personally. “Dude.” Peaceful to the last word.

Yet, what becomes lost in the frantic pace of hair-trigger news cycles, of officials declaring impetuous damnations alongside johnny-on-the spot podcasters spouting their split-second opinions are the two human beings who have lost their lives.

How habituated we’ve become as we instantly devour their instant obituaries. The sum of their lives declared in less than 10 seconds of cellphone video. They haven’t just lost their lives. They’ve lost all of their lives. And now we watch over and over again as their death is re-revealed, re-churned, re-evaluated, and re-consumed. In that endless repetition, we forget the meaning of life itself.

We must remember that Renee and Alex believed in their communities, in the purpose of their work, in the happiness of their loves and lives, and in the dignity and curiosity of life itself. They were singular individuals who did not deserve to die at the end of a gun barrel for any reason, ever.

How fitting that Renee was a poet. Sometimes in confronting the massiveness of loss in our lives, we look to our poetry and our psalms, our hymns and our lullabies, to find a moment of solace in our communal grief, and to remember Renee and Alex, for what they gave us in life.

Yet, at this moment, I cannot escape the reality of what was taken from them so soon, so violently and so forever. They were exceptionally courageous and normal people, and for that reason, I must remember them through a poem to explain to me, and others, the unexplainable.

I dream of this not happening.

I dream this day and night.

For none of this is real.

And none of this is right.

I dream of these sons and daughters

who now will not go home,

and dream of their mothers and fathers,

who now must stand alone.

I dream of all the flowers that they will never hold —

the kisses never shared again, the secrets to not be told.

I dream of all the sunsets that for them will never set,

I dream of all the love they gave and now they must forget.

I dream of all their dinners

with wine to never spill,

or books to read, or bread to break

or babies to be held.

I dream of each one still reaching

in the middle of the night,

for a hand that needs another

to stop a nightmare’s flight.

I dream of them not dreaming,

which I could never do,

for how can you not dream a dream

that never will come true.

I dream of this not happening.

I dream this day and night.

For none of this is real

And none of this is right.

Carew Papritz is the award-winning author of “The Legacy Letters,” who inspires kids to read through his “I Love to Read” and the “First-Ever Book Signing” YouTube series.

Opinions

Gay Treasury Secretary’s silence on LGBTQ issues shows he is scum

Scott Bessent is a betrayal to the community

Published

5 days ago

February 18, 2026

Peter Rosenstein

Treasury Secretary Scott Bessent (Washington Blade photo by Michael Key)

We all know the felon in the White House is basically a POS. He is an evil, deranged, excuse for a man, out only for himself. But what is just as sad for me is the members of the LGBTQ community serving in his administration who are willing to stand by silently, while he screws the community in so many ways. The leader, with his silence on these issues, is the highest ranking “out” gay ever appointed to the Cabinet; the current secretary of the treasury, the scum who goes by the name, Scott Bessent.

Bessent has an interesting background based on his Wikipedia page. He is from South Carolina and is what I would call obscenely wealthy. According to his financial assets disclosure to the U.S. Office of Government Ethics, Bessent’s net worth was at least $521 million as of Dec. 28, 2024; his actual net worth is speculated to be around $600 million. He married John Freeman, a former New York City prosecutor, in 2011. They have two children, born through surrogacy. I often wonder why guys like Bessent conveniently forget how much they owe to the activists in the LGBTQ community who fought for the right for them to marry and have those children. Two additional interesting points in the Wikipedia post are Bessent reportedly has a close friendship with Donald Trump’s brother Robert, whose ex-wife, Blaine Trump, is the godmother of his daughter. The other is disgraced member of the U.S. House of Representatives, John Jenrette, is his uncle.

Bessent has stood silent during all the administrations attacks on the LGBTQ community. What does he fear? This administration has kicked members of the trans community out of the military. Those who bravely risked their lives for our country. The administration’s policies attacking them has literally put their lives in danger. This administration supports removing books about the LGBTQ community from libraries, and at one point even removed information from the Pentagon website on the Enola Gay, the plane that dropped the first atomic bomb, thinking it might refer to a gay person. It was actually named after Enola Gay Tibbets, the mother of the pilot, Col. Paul Tibbets. That is how dumb they are. Bessent stood silent during WorldPride while countries around the world told their LGBTQ citizens to avoid coming to the United States, as it wouldn’t be safe for them, because of the felon’s policies.

Now the administration has desecrated the one national monument saluting the LGBTQ community, Stonewall, in New York City, by ordering the removal of the rainbow flag. The monument honors the people who get credit for beginning the fight for equality that now allows Bessent, and his husband and children, to live their lives to the fullest. That was before this administration he serves came into office. I hope his children will grow up understanding how disgusting their father’s lack of action was. That they learn the history of the LGBTQ community and understand the guts it took for a college student Zach Wahls, now running for the U.S. Senate from Iowa, to speak out for his “two moms” in the Iowa State Legislature in 2011, defending their right to marry.

Bessent is sadly representative of the slew of gays in the administration, all remaining silent on the attacks on the community. They are mostly members of the Log Cabin Republicans who have given up on their principles, if they ever had any, to be subservient to the felon, and the fascists around him, all for a job.

There are so many like them who supported the felon in the last election. Some who believed in Project 2025, others who didn’t bother to read it. Many continue to stand with him, with the sycophants in the Congress, and the incompetents and fascists in the administration, as they work to destroy our country and end the democracy that has served us so well for 250 years. To keep out all immigrants from a nation of immigrants. They all seem to forget it was immigrants who built our country, who fought against a king, and won. These sycophants now support the man who wants to be king. Who openly says, “I am president I can do anything only based on my own morality,” which history clearly shows us he has none.

I believe we will survive these horrendous times in American history. We have fought a king before and won. We have kept our country alive and thriving through a civil war. We the people will defeat the felon and his minions, along with the likes of those who stood by silently like Scott Bessent. They seem to forget “Silence = Death.”

Peter Rosenstein is a longtime LGBTQ rights and Democratic Party activist.

Opinions

Unconventional love: Or, fuck it, let’s choose each other again

On Valentine’s Day, the kind of connection worth celebrating

Published

1 week ago

February 13, 2026

Randal C. Smith

(Image by kotoffei/Bigstock)

There’s a moment at the end of “Love Jones” — the greatest Black love movie of the 21st century — when Darius stands in the rain, stripped of bravado, stripped of pride, stripped of all the cleverness that once protected him.

“I want us to be together again,” he says. “For as long as we can be.”

Not forever. Not happily ever after. Just again. And for as long as we can. That line alone dismantles the fairy tale.

“Love Jones” earns its place in the canon not because it is flawless, but because it is honest. It gave us Black love without sanitizing it. Black intellect without pretension. Black romance without guarantees. It told the truth: that love between two whole people is often clumsy, ego-driven, tender, frustrating, intoxicating—and still worth choosing.

That same emotional truth lives at the end of “Eternal Sunshine of the Spotless Mind,” my favorite movie of all time. Joel and Clementine, having erased each other, accidentally fall back into love. When they finally listen to the tapes that reveal exactly how badly they hurt one another, Clementine does something radical: she tells the truth.

“I’m not perfect,” she says. “I’ll get bored. I’ll feel trapped. That’s what happens with me.”

She doesn’t ask Joel to deny reality. She invites him into it. Joel’s response isn’t poetic. It isn’t eloquent. It’s not even particularly brave. He shrugs.

“Ok.”

That “OK” is one of the most honest declarations of love ever written. Because it says: I hear you. I see the ending. I know the risk. And I’m choosing you anyway.

Both films are saying the same thing in different languages. Nina and Darius. Clementine and Joel. Artists and thinkers. Romantics who hurt each other not because they don’t care — but because they do. Deeply. Imperfectly. Humanly.

They argue. They retreat. They miscommunicate. They choose pride over vulnerability and distance over repair. Love doesn’t fail because they’re careless — it fails because love is not clean.

What makes “Love Jones” the greatest Black love movie of the 21st century is that it refuses to lie about this. It doesn’t sell permanence. It sells presence. It doesn’t promise destiny. It offers choice.

And at the end — just like “Eternal Sunshine” — the choice is made again, this time with eyes wide open.

When Nina asks, “How do we do this?” Darius doesn’t pretend to know.

“I don’t know.”

That’s the point.

Love isn’t a blueprint. It’s an agreement to walk forward without one.

I recently asked my partner if he believed in soul mates. He said no—without hesitation. When he asked me, I told him I believe you can have more than one soul mate, romantic or platonic. That a soul mate isn’t someone who saves you — it’s someone whose soul recognizes yours at a particular moment in time.

He paused. Then said, “OK. With those caveats, I believe.”

That felt like a Joel shrug. A grown one.

We’ve been sold a version of love that collapses under scrutiny. Fairy tales promised permanence without effort. Celebrity marriages promised aspiration without truth. And then reality — messy, public, human—stepped in. Will and Jada didn’t kill love for me. They clarified it.

No relationship is perfect. No love is untouched by disappointment. No bond survives without negotiation, humility, and repair. What matters isn’t whether love lasts forever. What matters is whether, when confronted with truth, you still say yes.

“Love Jones” ends in the rain. “Eternal Sunshine” ends in a hallway. No swelling orchestras. No guarantees. Just two people standing at the edge of uncertainty saying: Fuck it. I love you. Let’s do it again.

That’s not naïve love. That’s courageous love.

And on Valentine’s Day — of all days — that’s the kind worth celebrating.

Randal C. Smith is a Chicago-based attorney and writer focusing on labor and employment law, civil rights, and administrative governance.